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West v. United States

United States District Court, S.D. West Virginia, Charleston

August 29, 2019

WILLIE WEST, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr., Senior United States District Judge.

         Pending is the movant's Emergency Motion to Correct Sentence Under 28 U.S.C. § 2255, filed on June 23, 2016, by his counsel, then-Federal Public Defender Christian M. Capece.

         This action was previously referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission to the court of his Proposed Findings and Recommendation (“PF&R”) for disposition pursuant to 28 U.S.C. § 636 (b) (1) (B). On July 31, 2019, the magistrate judge entered his PF&R recommending that the motion be denied, and that the civil action be dismissed from the court's docket. The movant filed objections on August 14, 2019, to which the United States did not reply.

         Upon an objection, the court reviews a PF&R de novo. Specifically, “[t]he Federal Magistrates Act requires a district court to ‘make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made.'” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (emphasis in original) (quoting 28 U.S.C. 636 (b) (1)).

         I. Background

         On June 19, 2007, the movant pled guilty in the above-cited criminal action to one count of witness tampering, in violation of 18 U.S.C. § 1512 (a) (1) (C), and one count of knowingly using, carrying, and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924 (c) (1) (A) (iii).

         The movant was sentenced to fifteen years imprisonment followed by a three-year term of supervised release on the witness tampering count, and a consecutive term of ten years imprisonment followed by a five-year term of supervised release on the second count. He was also ordered to pay restitution in the amount of $5, 106.49 and a $200 special assessment. He did not appeal his conviction or sentence.

         In United States v. Johnson, 135 S.Ct. 2551 (2015)[1], the Supreme Court found the residual clause of the definition of “crime of violence” found in the Armed Career Criminal Act, 18 U.S.C. § 924 (e) (2) (B), to be unconstitutionally vague. The movant thereafter filed the instant motion, arguing that Johnson also renders the similar definition of “crime of violence” found in 18 U.S.C. § 924 (c) (3) (B) -- which applies to 18 U.S.C. § 924 (c) (1) (a) (iii) -- unconstitutionally vague and that witness tampering therefore no longer constitutes a crime of violence under that statute.

         Since then, the law on the issue has expanded. In 2018, the Supreme Court decided Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which expanded Johnson to find that the residual clause in the “crime of violence” definition of 18 U.S.C. § 16(b) is also unconstitutionally vague. Then, in 2019, the findings of Johnson and Dimaya were expanded further when the Supreme Court decided United States v. Davis, 139 S.Ct. 2319, which held that the residual clause of the “crime of violence” definition found in 18 U.S.C. § 924 (c) (3) (B) is also unconstitutionally vague.

         Without the residual clause, a crime only constitutes a crime of violence if it meets the requirements of 18 U.S.C. § 924 (c) (3) (A), the “elements clause, ” which requires the crime to be a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another[.]” To determine whether a crime qualifies under the elements clause, “courts use . . . the ‘categorical' approach. They look to whether the statutory elements of the offense necessarily require the use, attempted use, or threatened use of physical force.” Simms, 914 F.3d at 233. Courts “consider only the crime as defined, not the particular facts in the case.” Id.

         Accordingly, the question here is whether witness tampering under 18 U.S.C. § 1512 (a) (1) (C) has as an element the use, attempted use, or threatened use of physical force. The text of that statute makes it a crime to “kill[] or attempt[] to kill another person, with intent to . . . prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings[.]” 18 U.S.C. § 1512 (a) (1) (C).

         The magistrate judge, in thoroughly considering the issue, applied the appropriate caselaw and aptly determined that killing or attempted killing necessarily requires the use of physical force and that 18 U.S.C. § 1512 (a) (1) (C) has as an element the use, attempted use, or threatened use of physical force, and is therefore a crime of violence.

         II. Objections

         The movant raises five objections to the PF&R. First, the movant objects that: “the record does not establish that West's original conviction arose under the force clause.” Obj. at 1. The defendant does not elaborate on this objection, but the court assumes the defendant is taking objection to the fact that it is unknown whether the trial judge relied on the residual clause or the force clause when determining whether the defendant had committed a crime of violence. Such objection is unfounded. If the underlying conviction satisfies the force clause, as the magistrate judge found it did, then it is an underlying § 924 (c) (3) (A) predicate and the residual clause is irrelevant. See United States v. Winston, 850 F.3d 677, 680 (4th Cir. 2017) (“even though the residual ...


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